Citation Nr: 0208912
Decision Date: 08/01/02 Archive Date: 08/12/02
DOCKET NO. 00-03 211 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an increased evaluation for a left knee
disability, rated in combination as 40 percent disabling.
2. Entitlement to an initial disability rating in excess of
60 percent for spondylolisthesis and degenerative joint
disease of the lumbosacral spine.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jonathan E. Taylor, Counsel
INTRODUCTION
The appellant served on active duty from April 1968 to April
1971.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a November 1998 rating decision of the
Montgomery, Alabama, Department of Veterans Affairs (VA)
Regional Office (RO), which granted service connection for a
back disability and assigned a 20 percent disability rating
effective from June 8, 1998, and increased the disability
rating for the appellant's service-connected left knee
disability from 20 percent to 30 percent disabling.
This case was before the Board previously in March 2001 when
it was remanded by the Board for additional development.
In April 2002 the appellant was awarded an increased
evaluation for his service-connected back disability, from 20
to 60 percent disabling effective from June 8, 1998. The
appellant was also awarded an additional 10 percent
disability rating for his left knee disability based upon
degenerative arthritis, raising the combined disability
rating for the left knee to 40 percent.
In it's July 2002 brief, the appellant's representative
raises a claim of total disability rating for compensation
based on individual unemployability due to service-connected
disabilities. This claim is referred to the RO for
appropriate development.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the agency of original jurisdiction.
2. The appellant's left knee disability is manifested by
marked instability, gait impairment, early fatigability, as
well as marked pain and edema; the disability picture
presented is analogous to postoperative total knee
replacement with severe residuals.
3. The appellant's low back disability has been manifested
by symptoms consistent with pronounced intervertebral disc
syndrome without ankylosis or vertebral fracture since the
effective date of the grant of service connection.
CONCLUSIONS OF LAW
1. The criteria for a 60 percent disability rating, but no
higher, for the appellant's left knee disability have been
met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2,
4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes
5003, 5010, 5055, 5257 (2001).
2. The criteria for a disability rating greater than 60
percent for spondylolisthesis and degenerative joint disease
of the lumbosacral spine have not been met at any time since
the effective date of service connection. 38 C.F.R. §§ 4.1,
4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic
Codes 5285, 5289, 5293 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
A July 1997 examination report by an unidentified private
physician, whose signature is illegible, states that the
appellant had severe limitation in his left knee and that
motion was reduced by 60 percent.
At an October 1998 VA spine examination, the appellant
complained of pain, stiffness, weakness, fatigability, and
lack of endurance in his back. He treated his back
disability with propoxyphene and nortriptyline and wore a
back brace. The appellant was able to flex his spine forward
to 92 degrees, extend it backward to 16 degrees, flex
laterally to the right 28 degrees, and flex laterally to the
left 14 degrees. There was evidence of painful motion,
spasm, weakness, and tenderness. Musculature of the back was
very slight. The examiner diagnosed degenerative joint
disease (DJD) of the lumbosacral spine with loss of function
due to pain. DJD was confirmed by x-ray examination of the
spine, which showed anterior displacement of L5 over S1 with
defect in the neuroarch representing spondylolisthesis.
At an October 1998 VA joints examination, the appellant
complained of episodes of giving way, pain, stiffness,
weakness, fatigability, and lack of endurance in his left
knee. He treated his left knee disability with propoxyphene
and nortriptyline and wore a knee brace. He reported that he
was employed as a laborer with a construction company but he
was unsure how much longer he would be able to work. There
was objective evidence of painful motion, instability,
weakness, and tenderness. There was abnormal movement and
guarding of movement with the left knee. There was no
evidence of effusion, edema, redness, or heat. The
appellant's gait was uneven and unsteady. He did not use a
cane or appliance. He was able to flex his left knee to 130
degrees and extend it to zero degrees. There was lateral,
anterior, and posterior instability of the left knee. It was
unstable. The examiner diagnosed DJD with meniscectomy of
the left knee and loss of function due to pain. DJD was
confirmed by x-ray examination of the spine, which showed
severe lateral and patellofemoral arthritic changes of the
left knee.
Medical records from W. S., M.D., (Dr. S.) show treatment of
the appellant from April 2001 to February 2002. Dr. S
described the appellant's left knee as "really loose with
significant lateral joint wear and moderate pain and crepitus
over the lateral joint." He stated in several notes that
the appellant was ultimately going to need a knee
replacement. He also commented that it was "semi-miraculous
that [the appellant] was even able to walk on [his left]
leg[,] much less anything else." On another occasion, Dr.
S. stated that the appellant had "end stage problems with
his left knee" and that it was surprising that the appellant
was even functional. The appellant wore a knee brace for
chronic supportive bracing because of significant lateral
joint degenerative changes. X-ray examination of the
appellant's spine in April 2001 showed spondylolisthesis
Grade I with an obvious pars defect at L5-S1 and advanced
degenerative change at L4-5 and L5-S1. In May 2001 Dr. S.
noted that the appellant lacked 10 degrees of full extension
of the left knee and could only flex his knee to
approximately 100 degrees. A May 2001 magnetic resonance
imaging (MRI) scan of the appellant's left knee showed a
complete tear of the anterior cruciate ligament, a small
undersurface tear in the posterior horn of the medial
meniscus, a chronic partial tear of the lateral collateral
ligament, joint effusion with loose bodies, severe
osteoarthritis, a bone infarct, and a zone of osteonecrosis.
It also showed a tear of the lateral meniscus. The
radiologist noted that some of the changes could be due to
previous surgical debridement. In January 2002 the appellant
reported to Dr. S. that he had been approved at VA to get his
left knee replaced surgically. A February 2002 of the
appellant's spine showed chronic Grade I spondylolisthesis,
spondylosis, chronic disc bulges, and chronic narrowing for
the L5-S1 neural foramina.
At a June 2001 VA joints examination, it was noted that the
appellant had had his lateral meniscus removed from his left
knee in service. The appellant complained of pain, weakness,
stiffness, swelling, heat and redness, instability, giving
way, locking, fatigability, and lack of endurance. He took
codeine every eight hours and wore a brace on his left knee.
There was objective evidence of instability, weakness, and
tenderness and marked evidence of edema and painful motion.
There was abnormal movement and guarding of movement with the
left knee. There was no evidence of subluxation, effusion,
redness, or heat. The appellant's gait was very slow and
deliberate with a slight limp. He was able to flex his left
knee to 138 degrees and extend it to zero degrees. There was
marked lateral instability of the left knee. The examiner
diagnosed chondrocalcinosis with marked DJD of the left knee
with loss of function due to pain. X-ray examination showed
chondrocalcinosis with minimal narrowing suggesting secondary
osteoarthritis. In response to specific questions in the
March 2001 Remand from the Board, the examiner stated that
there was marked evidence of weakness and instability but no
effusion. There was fatigability, incoordination, and
restricted motion. The scar on the appellant's left knee was
not tender or painful and did not interfere with the normal
function of the knee.
At a March 2002 VA spine examination, the appellant
complained of pain, stiffness, weakness, fatigability, and
lack of endurance in his back. He treated his back
disability with codeine, hydrocodone, and salsalate and wore
a back brace. His posture was forward flexed 8 degrees. The
appellant was able to flex his spine forward to 78 degrees,
extend it backward to 26 degrees, flex laterally to the right
32 degrees, and flex laterally to the left 28 degrees. There
was marked evidence of painful motion, spasm, weakness, and
tenderness. Musculature of the back was atrophic. He had 1+
reflexes on the right and zero on the left, even with
reinforcement. The examiner diagnosed DJD of the lumbosacral
spine with loss of function due to pain. DJD was confirmed
by x-ray examination of the spine, which showed Grade I
anterolisthesis of L5 on S1, most likely secondary to facet
degenerative disease at that level, and moderate discogenic
degenerative disease at the L4-5 and L5-S1 levels.
Analysis
VA has a duty to assist veterans in the development of facts
pertinent to their claims. There has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et
seq. (West Supp. 2001); see also 66 Fed. Reg. 45620 (August
29, 2001) (to be codified as amended at 38 C.F.R. § 3.102,
3.156(a), 3.159, 3.326(a)) (VA regulations implementing the
VCAA). This law redefines the obligations of VA with respect
to the duty to assist and includes an enhanced duty to notify
a claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.
First, VA has a duty to notify the veteran and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103 (West Supp. 2001); 66 Fed. Reg.
45620, 45630 (August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(b)). Information means non-evidentiary facts, such
as the veteran's address and Social Security number or the
name and address of a medical care provider who may have
evidence pertinent to the claim. 66 Fed. Reg. 45620, 45630
(August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(a)(5)). Second, VA has a duty to assist the veteran
in obtaining evidence necessary to substantiate the claim.
38 U.S.C.A. § 5103A (West Supp. 2001); 66 Fed. Reg. 45620,
45630-31 (August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(c)).
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. VCAA,
38 U.S.C.A. § 5100 et seq. (West Supp. 2001); see also
Karnas v. Derwinski, 1 Vet. App. 308 (1991). As discussed
below, the RO fulfilled its duties to inform and assist the
appellant on these claims. Accordingly, the Board can issue
a final decision because all notice and duty to assist
requirements have been fully satisfied, and the appellant is
not prejudiced by appellate review.
Sufficient information concerning the appellant was of record
at the time that he filed his claims. In an April 2002
Supplemental Statement of the Case (SSOC), the RO informed
the appellant of the type of evidence needed to substantiate
his claims, specifically the evidence required for higher
disability ratings for back and knee disabilities. VA has no
outstanding duty to inform the appellant that any additional
information or evidence is needed. The Board concludes that
the discussion in the SSOC informed the appellant of the
information and evidence needed to substantiate his claims
and complied with VA's notification requirements.
As for VA's duty to assist a veteran, the appellant has not
identified any treatment records that have not been obtained.
There is no indication that relevant (i.e., pertaining to
treatment for the claimed disabilities) records exist that
have not been obtained. As for VA's duty to obtain any
medical examinations, that was fulfilled by providing VA
examinations to the appellant in October 1998, June 2001, and
March 2002.
The Board finds that VA has done everything reasonably
possible to assist the appellant. Further, the RO's efforts
have complied with the instructions contained in the March
2001 Remand from the Board. See Stegall v. West, 11 Vet.
App. 268 (1998). A remand or further development of this
claim would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided). VA has
satisfied its duties to inform and assist the appellant in
this case. Further development and further expending of VA's
resources is not warranted. Any "error" to the appellant
resulting from this Board decision does not affect the merits
of his claims or his substantive rights, for the reasons
discussed above, and is therefore harmless. See 38 C.F.R.
§ 20.1102 (2001). Having determined that the duties to
inform and assist the appellant have been fulfilled, the
Board must assess the credibility, and therefore the
probative value of proffered evidence of record in its whole.
Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v.
Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125
F.3d 1477, 1481 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet.
App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161
(1993).
Disability ratings are intended to compensate reductions in
earning capacity as a result of the specific disorder. The
ratings are intended, as far as practicably can be
determined, to compensate the average impairment of earning
capacity resulting from such disorder in civilian
occupations. 38 U.S.C.A. § 1155 (West 1991). Consideration
of the whole recorded history is necessary so that a rating
may accurately reflect the elements of disability present.
38 C.F.R. §§ 4.1, 4.2 (2001); Peyton v. Derwinski, 1 Vet.
App. 282 (1991). Where entitlement to compensation has
already been established, and an increase in the disability
rating is at issue, the present level of disability is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994); Peyton, 1 Vet. App. 282; 38 C.F.R. §§ 4.1, 4.2
(2001). It is also necessary to evaluate the disability from
the point of view of the veteran working or seeking work,
38 C.F.R. § 4.2 (2001), and to resolve any reasonable doubt
regarding the extent of the disability in the veteran's
favor. 38 C.F.R. § 4.3 (2001).
An evaluation of the level of disability includes
consideration of the functional impairment of the appellant's
ability to engage in ordinary activities, including
employment. 38 C.F.R. § 4.10 (2001). If there is a question
as to which evaluation to apply to the veteran's disability,
the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria for that
rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2001).
Regarding musculoskeletal disabilities, such as the
appellant's left knee and low back disabilities, functional
loss contemplates the inability of the body to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination and endurance, and must be
manifested by adequate evidence of disabling pathology,
especially when it is due to pain. 38 C.F.R. § 4.40 (2001).
A part that becomes painful on use must be regarded as
seriously disabled. Id.; see also DeLuca v. Brown, 8 Vet.
App. 202 (1995). Both limitation of motion and pain are
necessarily recorded as constituents of a disability. 38
C.F.R. §§ 4.40, 4.45, 4.59 (2001); see also DeLuca, 8 Vet.
App. 202.
A disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
38 C.F.R. § 4.40 (2001); see DeLuca v. Brown, 8 Vet.
App. 202, 205-06 (1995).
As regards the joints, the factors of disability reside in
reductions of their normal excursion of movements in
different planes. Inquiry will be directed to less or more
movement than normal (due to a variety of reasons, to include
ankylosis), weakened movement, excess fatigability,
incoordination, impaired ability to execute skilled movements
smoothly, pain on movement, swelling, or deformity or atrophy
of disuse. 38 C.F.R. § 4.45 (2001).
1. Left knee disability
The appellant's left knee disability is currently rated as 30
percent disabling under Diagnostic Code 5257 for knee
impairment manifested by severe recurrent subluxation or
lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257
(2001). A 30 percent rating is the maximum rating under that
diagnostic code. The appellant has also been assigned a
separate 10 percent disability rating under Diagnostic Code
5003 for degenerative arthritis based on x-rays findings and
on painful motion. See 38 C.F.R. §§ 4.14, 4.59, 4.71a,
Diagnostic Codes 5003, 5260, 5261 (2001); VAOPGCPREC 23-97;
VAOPGCPREC 9-98.
Because the maximum, 30 percent, rating under Code 5257 has
already been assigned for the service-connected left knee
disability, a higher rating on that basis is not possible.
However, the medical evidence of record reflects that the
appellant's service-connected knee disability is manifested
by impairment greater than severe instability. There is
additional impairment due to the service-connected left knee
disability that is not accounted for in the 30 percent rating
assigned for instability, even with an additional 10 percent
disability rating for DJD, especially with consideration of
the factors listed in 38 C.F.R. §§ 4.40, 4.45, and the
mandates of DeLuca. Specifically, the appellant has
complaints of pain, weakness, and swelling in the left knee,
early fatigability of the left knee, and a slow, deliberate,
altered gait. The additional impairment cited above does not
fit squarely into any of the criteria provided by the
applicable diagnostic codes, and rating by analogy to other
diagnostic codes which do encompass the types of impairment
shown in the instant case must be explored. Upon review of
all potentially analogous criteria, the Board finds that
Diagnostic Code 5055 criteria address a disability picture
that is most consistent with the pathology and impairment
shown in the instant case. That diagnostic code provides
that following the one-year period of a total rating after a
total knee replacement (TKR), a 60 percent rating is to be
assigned if the replacement resulted in chronic residuals
consisting of severe painful motion or weakness in the
affected extremity. Here, current symptoms listed above
present a disability picture analogous to severe
weakness/pain following implantation of a knee prosthesis.
It is noteworthy that TKR has been a treatment option
considered and that it is considered inevitable. A VA
examiner has described marked painful motion and edema as
well as marked weakness and instability. A private physician
has described the appellant's continued ability to function
as "surprising" and "semi-miraculous." Rating the
disability by analogy to Diagnostic Code 5055, and resolving
reasonable doubt regarding the degree of disability shown in
the appellant's favor, the Board concludes that a 60 percent
rating is warranted.
The Board notes that a rating in excess of 60 percent may not
be assigned unless there actually has been a TKR (Diagnostic
Code 5055) or amputation of the leg at the upper third of the
thigh (Diagnostic Code 5161). Inasmuch as the appellant has
not had a TKR and does not have impairment equivalent to
amputation at the upper third of the thigh, a rating in
excess of 60 percent is not warranted. It is noteworthy also
that the amputation rule, 38 C.F.R. § 4.68, would preclude a
rating in excess of 60 percent in this case.
2. Back disability
The appellant has disagreed with the original disability
rating assigned for his spondylolisthesis and degenerative
joint disease of the lumbosacral spine. There is a
distinction between a claim based on disagreement with the
original rating awarded and a claim for an increased rating.
Fenderson v. West, 12 Vet. App. 119 (1999). The distinction
may be important in determining the evidence that can be used
to decide whether the original rating on appeal was erroneous
and in determining whether the veteran has been provided an
appropriate Statement of the Case (SOC). Id. at 126, 132.
With an initial rating, the RO can assign separate disability
ratings for separate periods of time based on the facts
found. Id. at 126. With an increased rating claim, "the
present level of disability is of primary importance."
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This
distinction between disagreement with the original rating
awarded and a claim for an increased rating is important in
terms of VA adjudicative actions. Fenderson, 12 Vet. App. at
132.
An April 2002 rating decision identified the issue on appeal
as evaluation of DJD of the lumbosacral spine currently
evaluated as 20 percent disabling. The RO evaluated all the
evidence of record in determining the proper evaluation for
the appellant's service-connected disability. The RO did not
limit its consideration to only the recent medical evidence
of record, and did not therefore violate the principle of
Fenderson. Indeed, in that rating decision, the RO increased
the appellant's disability rating to 60 percent beginning
from the effective date of service connection. The appellant
has been provided appropriate notice of the pertinent laws
and regulations and has had his claim of disagreement with
the original rating properly considered based on all the
evidence of record. The RO complied with the substantive
tenets of Fenderson and the March 2001 Remand from the Board
in its adjudication of the appellant's claim. See Stegall v.
West, 11 Vet. App. 268 (1998).
Disability ratings are intended to compensate reductions in
earning capacity as a result of the specific disorder. The
ratings are intended, as far as practicably can be
determined, to compensate the average impairment of earning
capacity resulting from such disorder in civilian
occupations. 38 U.S.C.A. § 1155 (West 1991). Evaluation of
a service-connected disorder requires a review of the
veteran's entire medical history regarding that disorder.
38 C.F.R. §§ 4.1, 4.2 (2001). Because this appeal is from
the initial ratings assigned to disabilities upon awarding
service connection, the entire body of evidence is for equal
consideration. Consistent with the facts found, the rating
may be higher or lower for segments of the time under review
on appeal, i.e., the rating may be "staged." Fenderson v.
West, 12 Vet. App. 119 (1999); cf. Francisco v. Brown, 7 Vet.
App. 55, 58 (1994) (where an increased rating is at issue,
the present level of the disability is the primary concern).
Such staged ratings are not subject to the provisions of
38 C.F.R. § 3.105(e), which generally requires notice and a
delay in implementation when there is proposed a reduction in
evaluation that would result in reduction of compensation
benefits being paid. Fenderson, 12 Vet. App. at 126. The
Board will consider all evidence in determining the
appropriate evaluation for the appellant's service-connected
lumbar spine disability.
The appellant's service-connected spondylolisthesis and
degenerative joint disease of the lumbosacral spine has been
rated since the effective date of the initial grant of
service connection as 60 percent disabling under Diagnostic
Code 5293 for pronounced intervertebral disc syndrome with
persistent symptoms, compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to the
site of the disease disk, with little intermittent relief.
This is the highest disability rating available under this
diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5293
(2001). Therefore, the Board will consider whether a higher
rating is available under any other applicable code. The
record does not reflect ankylosis of the spine for evaluation
pursuant to Diagnostic Code 5289 or residuals of a fractured
vertebra consisting of demonstrable deformity of a vertebral
body for evaluation pursuant to Diagnostic Code 5285.
Because the medical evidence does not show that these
diagnostic codes would be more appropriate to the appellant's
disability, an increased rating is not warranted under either
of them. 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5289
(2001). Accordingly, the Board concludes that the criteria
for a disability rating greater than 60 percent have not been
met in this case at any time since the initial grant of
service connection.
In reaching this conclusion, the Board has considered the
overall disability picture demonstrated by the record to
arrive at the appropriate level of functional impairment such
as to provide for fair compensation in this case. In so
doing, the Board has carefully considered all applicable
statutory and regulatory provisions to include 38 C.F.R. §§
4.40 and 4.59 as well as the holding in DeLuca, 8 Vet. App.
202, regarding functional impairment attributable to pain.
The Board finds that a 60 percent disability rating considers
the appellant's functional loss, pain, and weakness resulting
from his low back disability. Section 4.14 of title 38, Code
of Federal Regulations, states that the evaluation of the
same disability or manifestation under various diagnoses is
to be avoided, 38 C.F.R. § 4.14 (2001); however,
consideration has been given to other potentially applicable
diagnostic codes that provide for a rating in excess of 60
percent. Because intervertebral disc syndrome involves loss
of range of motion, separate ratings may not be assigned
under Diagnostic Code 5293 and the limitation of motion
codes.
3. Extraschedular consideration
In exceptional cases where a schedular evaluation is found to
be inadequate, the RO may refer a claim to the Chief Benefits
Director or the Director, Compensation and Pension Service
for consideration of "an extra-schedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities." 38 C.F.R. § 3.321(b)(1) (2001). "The
governing norm in these exceptional cases is: A finding that
the case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards." 38 C.F.R. § 3.321(b)(1) (2001).
The Board notes first that the schedular evaluations for the
disabilities in this case are not inadequate. Higher ratings
are provided for impairment due to leg and spinal
disabilities; however, the medical evidence reflects that
those manifestations are not present in this case. Second,
the Board finds no evidence of an exceptional disability
picture in this case. The appellant has not required any
periods of hospitalization for his service-connected back
disability or his service-connected left knee disability.
It is undisputed that the appellant's service-connected
disabilities have an adverse effect on his employment, but it
bears emphasizing that the schedular rating criteria are
designed to take such factors into account. The schedule is
intended to compensate for average impairments in earning
capacity resulting from service-connected disability in civil
occupations. 38 U.S.C.A. § 1155 (West 1991). "Generally,
the degrees of disability specified [in the rating schedule]
are considered adequate to compensate for considerable loss
of working time from exacerbations or illnesses proportionate
to the severity of the several grades of disability." 38
C.F.R. § 4.1 (2001). Therefore, given the lack of evidence
showing unusual disability not contemplated by the rating
schedule, the Board concludes that a remand to the RO for
referral of these issues to the VA Central Office for
consideration of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b) (1) is not warranted.
ORDER
A 60 percent rating, but no higher, for the appellant's left
knee disability, is granted, subject to the regulations
governing the payment of monetary awards.
Entitlement to an evaluation higher than 60 percent for
spondylolisthesis and degenerative joint disease of the
lumbosacral spine, on appeal from the initial grant of
service connection, is denied.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the claim
on or after November 18, 1988" is no longer a condition for
an attorney-at-law or a VA accredited agent to charge you a
fee for representing you.